FMLA law and unlawful terminations after FMLA leave

When is it against FMLA law to fire an employee for events that happen while they are on leave?

Company violates FMLA law when dismissing woman on leave

She’d never been formally disciplined for the offense cited

Before you dismiss someone who’s on FMLA leave, be sure you can prove the firing isn’t related to the leave. Here’s a case where the employer couldn’t make that argument stick.

She did get a warning, though

A clerk at an automobile dealership was diagnosed with breast cancer. She requested a 12-week unpaid FMLA leave of absence.

During the leave, the employer determined that the clerk had improperly trained her replacement. This wasn’t the first time she’d failed to provide proper training. Prior to her leave, she’d been verbally warned about her failure to train junior-level clerks.

When the clerk was fired two weeks before she was to return to work, she sued her employer for violating her rights under FMLA.

The employer argued that the clerk was fired for failing to perform her duties, and that she wasn’t entitled to special protection under FMLA law.

A court found in favor of the clerk. She had many years of service, her employer failed to formally discipline her for earlier lapses and her job description had no emphasis on training. The court said that a jury could reasonably infer that she wouldn’t have been fired had she not taken FMLA leave.

Ineffective trainer wins under FMLA law

Supervisor Angie Burke didn’t like making this call but knew she had to. “Dale, I’m sorry to say this but we’re going to let you go.”

Dale Allen gasped. “You can’t fire me,” she said. “I’m out on FMLA leave with breast cancer. I’m due back in just two weeks.”

People missed their checks!

“The accounting department is in total chaos right now because you didn’t train your replacement properly,” said Angie. “Half of our employees missed their paychecks and they’re furious.”

“I trained her,” said Dale.

“But you did a poor job of it,” replied Angie. “This isn’t the first time we’ve had problems with your training of other employees. In your file there’s a note that you were given a verbal warning for failing to properly train junior-level clerks.”

“You’re basing this on one lousy warning? What about all my years of dedicated service?”

Yes, Dale won her lawsuit. She persuaded the courts that her employer had retaliated against her for taking FMLA leave.

On the one hand, you can look at this case and say that the employer acted recklessly by firing a woman while she’s on leave for breast cancer.

On the other hand, the company thought it was making a valid argument that it would have fired Dale regardless of whether or not she took the leave. As you know, under FMLA law a company can fire an employee if it can make that case compellingly.

The courts, however, found that the evidence supporting the company’s claim was thin. Dale had been with the company for many years and at no time had she been disciplined for failing to train employees properly.

Job description didn’t help

Nor was there anything in her job description indicating that “training” was a key skill in her position. The company, in the end, built its entire case on one verbal reprimand. That just didn’t cut it.

Lesson learned: Firing employees who have taken FMLA leave is dangerous. You can only do so if you have extensive documented evidence that you would have fired the person even if she hadn’t taken leave—otherwise, don’t expect FMLA law to be on your side.

FMLA law: Managers’ complaints looked like retaliation

She was entitled to FMLA leave, but snide remarks suggested otherwise

When an employee takes FMLA leave, it may create a burden for her supervisors and coworkers, who are left to divvy up her duties. Your managers and employees don’t have to like it, but if they’re disgruntled they should keep their opinions to themselves – or your firm could take a hit from FMLA law.

Facts of the case

Jacqueline Doebele, a financial analyst, was diagnosed with bipolar disorder and hypothyroidism. Shortly after she returned to work from her nine-week FMLA leave, she was discharged for “lack of personal effectiveness.” Doebele sued her former employer. Her claim: Her discharge was in retaliation for taking family medical leave, a clear violation of FMLA law.

Doebele presented testimony by a manager who stated that while Doebele was on leave, supervisors complained about having to divide her work among other employees. She also presented two e-mails written by supervisors in which they complained about her absence.

Doebele won her lawsuit. One thing that swayed the court was the fact that her “lack of personal effectiveness” review was written suspiciously late in the game – several weeks after she’d begun her leave.

This case shows the importance of keeping up-to-date documentation and remembering that “loose lips lose lawsuits.”

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